Bouchard v. Canada (Attorney General), (2014) 470 F.T.R. 161 (FC)

• Judge: Bédard, J.
• Court: Federal Court (Canada)
• Case Date: October 16, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 470 F.T.R. 161 (FC);2014 FC 1231

Bouchard v. Can. (A.G.) (2014), 470 F.T.R. 161 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] F.T.R. TBEd. JA.044

Martin Bouchard (demandeur) v. Le Procureur général du Canada (défendeur)

(T-250-14; 2014 CF 1231; 2014 FC 1231)

Indexed As: Bouchard v. Canada (Attorney General)

Federal Court

Bédard, J.

December 18, 2014.

Summary:

Bouchard was released from the Canadian Armed Forces for medical reasons (bipolar II disorder), based on the permanent medical employment limitations (MELs) determined by the Directorate of Medical Policy (D Med Pol). He filed a grievance that was dismissed by the Chief of Defence Staff (CDS). Bouchard applied for judicial review.

The Federal Court, on a standard of reasonableness, allowed the application. The manner in which the D Med Pol and the CDS handled the medical evidence was insufficient. The matter was referred back to the CDS to "take the necessary measures for the process that led to the determination of permanent MELs and to the administrative review resulting in the applicant's release to be undertaken from the beginning by different stakeholders."

Armed Forces - Topic 8907

Release or discharge - General - Reasons for - The applicant was released from the Canadian Armed Forces (CAF) for medical reasons (bipolar II), based on the permanent medical employment limitations determined by the Directorate of Medical Policy - The limitation concerning the taking of medication was in complete contradiction with the opinion expressed by Dr. Fallu, the only physician who fully assessed the applicant - The applicant's grievance was dismissed by the Chief of Defence Staff - The Federal Court, in allowing the judicial review application, stated that "[t]he specific nature of the military context, and especially of military operations, requires military physicians and officers to have the necessary discretion to assess the consequences that may arise from the medical condition of a CAF member in an operational context. However, in the matter at bar, it was not Dr. Fallu's opinion on the risks posed by the applicant's medical condition in a military context that was rejected, but his opinion on the applicant's actual condition, its severity and the treatment required to control it." - See paragraphs 63 and 64.

Armed Forces - Topic 8907

Release or discharge - General - Reasons for - The Federal Court stated that the Directorate of Medical Policy, on its analysis of a medical record to determine whether medical employment limitations (MELs) should be imposed on a member of the Canadian Armed Forces (CAF) "must, first, assess the member's condition ... . The purpose of this first step is to properly understand the member's condition and the limitations and risks arising from it. This first step entails a medical assessment that has no bearing on the military context. Naturally, the member's medical condition, including any related consequences and risks, must then be assessed in light of the special needs and duties of the CAF in the context of a military operation, in order to determine whether the member's medical condition requires permanent MELs. But if the assessment of a member's condition is wrong from the start, or lacks justification, any review leading to the imposition of permanent MELs, and ultimately an administrative action as a result of the MELs, is flawed." - See paragraph 65.

Armed Forces - Topic 9030

Release or discharge - Judicial review - Reasonableness of decision - The applicant was released from the Canadian Armed Forces (CAF) for medical reasons (bipolar II disorder), based on the permanent medical employment limitations (MELs) determined by the Directorate of Medical Policy (D Med Pol) - The limitation that was fatal to the applicant was the fact that he took medication - His grievance was dismissed by the Chief of Defence Staff (CDS) - The Federal Court allowed the judicial review application - The manner in which D Med Pol dealt with the medical evidence on file was inadequate, and, in agreeing with the opinions expressed by D Med Pol, the CDS made an unreasonable decision - D Med Pol's opinions were based on a general assessment of bipolar disorder - The limitation concerning the taking of medication was in complete contradiction with the opinion expressed by Dr. Fallu, the only physician who fully assessed the applicant - D Med Pol was not obliged to accept Dr. Fallu's opinion, but in rejecting it, it had a duty to explain the basis for its decision - The CDS, in approving D Med Pol's opinion, did not explain why he was rejecting the opinion of Dr. Fallu - "Consequently, I find it impossible to conclude that the CDS's decision was based on a rational, non-arbitrary decision-making process, and his handling of the contradictory medical evidence seems utterly insufficient to me." - See paragraphs 50 to 71.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 36].

Harris v. Canada (Attorney General), [2013] N.R. Uned. 197; 2013 FCA 278, affing. (2013), 433 F.T.R. 181; 2013 FC 571, refd to. [para. 37].

Babineau v. Canada (Attorney General), [2014] F.T.R. Uned. 166; 2014 FC 398, refd to. [para. 37].

Osterroth v. Canada (Chief of Defence Staff) et al., [2014] F.T.R. Uned. 190; 2014 FC 438, refd to. [para. 37].

Moodie v. Canada (Attorney General), [2014] F.T.R. Uned. 163; 2014 FC 433, refd to. [para. 37].

Lampron v. Canada (Attorney General), [2012] F.T.R. Uned. 803; 2012 FC 825, refd to. [para. 37].

Birks v. Canada (Attorney General) (2010), 375 F.T.R. 83; 2010 FC 1018, refd to. [para. 37].

McBride v. Canada (Minister of National Defence) (2012), 431 N.R. 383; 2012 FCA 181, dist. [paras. 49, 67].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 367; 2014 FCA 113, refd to. [para. 72].

Yantzi v. Canada (Attorney General), [2014] N.R. Uned. 146; 2014 FCA 193, refd to. [para. 73].

Counsel:

Juliana Rodriguez, for the applicant;

Chantal Sauriol, for the respondent.

Solicitors of Record:

Caza, Gagnon, Sherbrooke, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application for judicial review was heard at Montreal, Quebec, on October 16, 2014, before Bédard, J., of the Federal Court, who delivered the following judgment and reasons, dated December 18, 2014.